This section provides a context for the attestation process, to
facilitate understanding by health care facilities that may seek
nonimmigrant nurses under H-1A visas.
(a) Federal agencies' responsibilities. The United States Department
of Labor (DOL), Department of Justice, and Department of State are
involved in the H-1A visa process. Within DOL, the Employment and
Training Administration (ETA) and the Employment Standards
Administration (ESA) have responsibility for different aspects of the
process.
(b) Health care facility's attestation responsibilities. Each health
care facility seeking one or more H-1A nurses shall, as the first step,
submit an attestation on Form ETA 9029, as described in Sec. 655.310 of
this part, to the designated regional office of the Employment and
Training Administration (ETA) of DOL. If the attestation is found to
meet the requirements set at Sec. 655.310 (a) through (k) of this part,
ETA shall accept the attestation for filing, shall return the cover form
of the accepted attestation to the health care facility, and shall
notify the Immigration and Naturalization Service (INS) of the
Department of Justice of the filing. As discussed in Sec. 655.310 of
this part, if the facility proposes to utilize alternative methods to
comply with Attestation Elements I and/or IV, or asserts that taking a
second timely and significant step under Element IV would be
unreasonable, or claims a bona fide medical emergency exemption from
Element IV as a worksite using one or more H-1A nurses through a nursing
contractor only, additional supporting information and ETA review shall
be required.
(c) Visa petitions. Upon ETA's acceptance of the filing, the health
care facility may then file with INS H-1A visa petitions for the
admission of H-1A nurses, or to extend the stay of alien nurses
currently working at the facility. the facility shall attach a copy of
the accepted attestation form (Form ETA 9029) to the visa petition filed
with INS. At the same time that the facility files a visa petition with
INS, it shall also send a copy of the visa petition with INS, it shall
also send a copy of the visa petition to the Chief, Division of Foreign
Labor Certifications, U.S. Employment Service, Employment and Training
Administration, Department of Labor, 200 Constitution Avenue, NW., room
N-4456, Washington, DC 20210.
(d) Visa issuance. INS assures that the nonimmigrants possess the
required qualifications and credentials to be employed as nurses. See 8
U.S.C. 1182(m)(1)). The Department of State is responsible for issuing
the visa.
(e) Board of Alien Labor Certification Appeals (BALCA) review of
attestations accepted and not accepted for filing. The decision whether
or not to accept for filing an attestation which ETA has reviewed, that
is: an attestation where the facility is attesting to alternative
methods of compliance with Element I and/or Element IV; an attestation
where the facility is claiming that taking a second timely and
significant step would not be reasonable; and/or an attestation where a
facility that is not an employer of H-1A nurses is claiming a bond fide
medical emergency as the
basis for requesting a waiver of Element IV; may be appealed by any
interested party to the BALCA.
(f) Complaints. Complaints concerning misrepresentation in the
attestation or failure of the health care facility to carry out the
terms of the attestation may be filed with the Wage and Hour Division
(Division), Employment Standards Administration (ESA) of DOL, according
to the procedures set forth in subpart E of this part. Complaints of
``misrepresentation'' may include assertions that a facility's
attestations of compliance failed to meet the regulatory standards for
attestation elements under which the attestation was accepted by ETA for
filing without ETA review. The Division shall then investigate, and,
where appropriate, after an opportunity for a hearing, assess sanctions
and penalties. Subpart E of this part also provides that interested
parties may obtain an administrative law judge hearing and may seek the
Secretary's review of the administrative law judge's decision.
